Rule Five Federalism Friday

Senate procedures are frequently criticized by Republicans and Democrats alike. Hurdles such as the 60-vote threshold to limit debate make it difficult to pass legislation. And until 2013, when Democrats had control of the chamber, 60 votes were required to invoke cloture on all nominations by the president, except Supreme Court nominees.

At the time, Democrats had a 54-seat majority, including two independents, and complained that Republicans were blocking nominees to various executive agencies. Majority Leader Harry Reid (D-Nev.) led an effort to eliminate the filibuster and quickly confirm then-President Barack Obama’s executive and judicial appointments.

Last year, with a 52-seat majority, Majority Leader Mitch McConnell (R-Ky.) and Republicans, using the precedent established in 2013 under Democratic control of the Senate, eliminated use of the filibuster for Supreme Court nominees. The filibuster for legislation remains intact.

As envisioned by the Framers of the Constitution, the Senate was to represent state interests in Congress. The House of Representatives was meant to be the part of the legislative branch closest to the people. Article I, Section 2 of the Constitution specifies that representation in the House is based on population of the states and its members are directly elected.

Here’s the real kicker:

Without question, the 17th Amendment has led to more growth in the federal government since it eliminates the state voices that would traditionally advocate for a balance of power between state and federal government. Unsurprisingly and unfortunately, the direct election of senators has almost completely undermined federalism.

Today’s charges that the Senate is “undemocratic” and that representation should be based on population arise from a fundamental misunderstanding of what our government is supposed to be. The Framers were obviously skeptical of a monarchy, which could be tyrannical, and were skeptical of direct democracy, which they rightly viewed as mob rule.

It bugs me when people who should know better refer to “our democracy.” The United States is not and never was a democracy; it’s a Constitutional Republic, and the Founders built into the Constitution specific safeguards to prevent the nation from foundering into direct democracy. And the appointment of Senators by the legislatures of the several States was key in said prevention.

At present, Senators are just Representatives with longer terms in office. At present, the government of Zimbabwe has direct representation in the Imperial City (through an embassy) but the government of Wyoming does not.

Much as I’d like to see the 17th repealed (and several others into the bargain) I’ve resigned myself to the idea that I’ll never see it happen. It is in the nature of government to grow ever larger and more intrusive; the 17th Amendment is a symptom of that, not a cause. The Founders did a pretty decent job of constraining the Imperial government, but those chains slip ever further now, day by day, while most of the citizenry welcomes ever-increasing Imperial power.